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PaperclipPerfector  21d ago (text post)   32321 thread views

Culture War Roundup for the week of April 14, 2025

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The 4th US Circuit Court of Appeals declined to lift the order on the executive to "facilitate" the return of Abrego Garcia and I recommend reading it

It's written up by judge James Wilkinson III, a Reagan appointee and Bush era short list candidate for the supreme court and he's quite well respected in the legal profession. This guy has been a conservative for longer than many people here have even been alive, and the stance of seasoned judicial figures like him with old style "respectable" political ideologies are an interesting way to see the change in the rest of politics.

Most importantly in that it incidentally addresses many of the questions and concerns people have about this whole situation.

Like does it matter whether or not the executive's allegations against Garcia are correct?

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or "mistakenly" deported. Why then should it not make what was wrong, right?

What does the Supreme Court's decision actually say?

The Supreme Court's decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs" Noem v. Abrego Garcia, No. 24A949, slip op. at 2 (U.S. Apr. 10, 2025); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the "facilitation" of Abrego Garcia's return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court's decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.

The Supreme Court's decision does not, however, allow the government to do essentially nothing. It requires the government "to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." Abrego Garcia, supra, slip op. at 2. "Facilitate" is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 ("[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps."). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government's argument that all it must do is "remove any domestic barriers to [Abrego Garcia's] return," Mot. for Stay at 2, is not well taken in light of the Supreme Court's command that the government facilitate Abrego Garcia's release from custody in El Salvador.

An interesting difference between the role of the executive and the rule of the judiciary

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

Are the claims that this could be used on citizens valid?

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?" And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive's obligation to "take Care that the Laws be faithfully executed" would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

On the contradictions between both government's public claims of authority and/or responsibility.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.

Are there previous major examples of an executive following a court order it did not like?

It is in this atmosphere that we are reminded of President Eisenhower's sage example. Putting his "personal opinions" aside, President Eisenhower honored his "inescapable" duty to enforce the Supreme Court's decision in Brown v. Board of Education II to desegregate schools "with all deliberate speed." Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that "[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts." Id. at 3. Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result." Id.

And if you're wondering "Why do the courts even get a say here to begin with about the executive's actions?", here's a basic primer.

I suppose I'm just not enough of a lawcuck to understand why this is being blown up into such an ordeal. The guy is an El Salvadorean citizen, was not in the US legally, and could have been deported to any country (besides El Salvadore) and then, from there, immediately deported again to El Salvadore and this would have somehow been fine. But because some braindead or politically captured bureaucrat rubber stamped his paperwork where he claimed he'd be in danger if he returned to his own country they granted a targeted stay of deportation, which precipitated this entire clusterfuck.

The guy was married to a US citizen ("Jennifer Vasquez Sura", okay...) who had filed a restraining order against him. Not exactly Elite Human Capital. The wife had two children from a previous relationship who are "disabled". Garcia's own child is also "disabled". This context is supposed to engender some kind of sympathy, I suspect, but as someone who actually interacts with people of this socioeconomic strata I am more inclined to believe they were scamming government benefits, and the wife's current PR blitz is a consequence of her smelling blood in the water chasing a fat legal payout.

I will freely concede that it would be alarming if the Trump administration deployed this "strategy" to consign innocent American citizens to a third world gulag without legal recourse or due process, but I don't think Trump is "based" enough to do that. (No, the off-hand comment he made to Bukele about sending "homegrowns" does not count, as it was clearly about -- legally -- sending convicted criminals to serve out their sentences more cheaply than can be done domestically.) This attempt to force the executive to (presumably, temporarily) return one particular illegal comes across as political theater and legal chicanery. Frankly I'm hoping Trump makes a show of retrieving Garcia on Air Force One, landing in the US for a photo op, then clasping him in chains and loading him back on the plane, to dump him in Argentina or somewhere else -- from where he'll be repatriated straight into El Salvadore's "black site prison", hopefully for life.

There was some minor procedural error, therefore we must make an elaborate show of correcting it, at great expense, to achieve an outcome that will immediately collapse back to the current status quo. This is your brain on legalism.

But because some braindead or politically captured bureaucrat rubber stamped his paperwork where he claimed he'd be in danger if he returned to his own country they granted a targeted stay of deportation, which precipitated this entire clusterfuck.

Another Art II bureaucrat would have rubber stamped the dissolution of that order had this government had their shit together enough to even know it existed.

It's not the minor procedural error that stings, it's the not even knowing.

Can you name another time when you've been incensed over a 1-in-100,000 procedural error rate?

Can you name a government process or department with a lower error rate?

I would happily concede this is all fine if the error rate is indeed 1/100K. Will you concede that it's unacceptable to be 1/5k?

And yes, I think the CBP does not incorrectly turn away more than 1/10K people at the border.

Will you concede that it's unacceptable to be 1/5k?

Nope. I don't find the actual error in question to be particularly meaningful. This dressing down to ignorant children who didn't do their homework sums up the state of discourse fairly well.

If you're going to say 1/5k is unacceptable, then I hope to see you advocating for burning down the entire government. The error rate for Medicaid payments seems to be something like 1 in 20. The Child Care & Development fund is bouncing between 9 and 13%. Apparently our own government can't even retire employees in a reasonably timely manner because almost 30% of the applications have errors

A majority of states are not processing food assistance applications on time and making too many payment errors, according to the federal government.

The IRS makes mistakes when taxing people less than 1% of the time... which is still 50 times worse than your "unacceptable" rate for "deporting people who were definitely supposed to be deported, but missing a step in the paperwork".

There's too many cites to bother linking them all, but I'm seeing false conviction rates ranging from 1-12%... including a purported 4% rate of executing innocent people that is in a paywalled National Geographic article I can only see a preview of.

Want to talk about drone strike error rates?

So, no. I'm not going to concede that a functionally irrelevant-to-outcome paperwork snafu happening in 1 in 5000 deportations is "unacceptable" in any meaningful way. That's actually wildly better than anything else I expect from our government and everyone who cares so, so, so deeply about processes apparently ought to be worshipping Tom Hooman and begging to put him in charge of other parts of the government, too.

Your link quotes things like

The 17 Year-2 States found that half of the cases with improper authorization for payment errors were due to missing or insufficient documentation.

Yeah, if you fill out your documentation wrong, it causes it to be denied. That's hardly the kind of error we're talking about

The IRS makes mistakes when taxing people less than 1% of the time... which is still 50 times worse than your "unacceptable" rate for "deporting people who were definitely supposed to be deported, but missing a step in the paperwork".

You mean removing people to a country for which they had a legally binding order withholding removal.

That's not a "step in the paperwork" kind of mistake.

There's too many cites to bother linking them all, but I'm seeing false conviction rates ranging from 1-12%... including a purported 4% rate of executing innocent people

Are you seriously quoting some left wing boogeyman that 1/25 executions being of the innocent? That's absurd enough not to even merit further investigation.

The withholding order was literally a bureaucratic technicality. It should have been removed before deportation as a matter of procedure, but it wasn't. The withholding order was based on threats that no longer exist. If it had been removed first, then the ONLY substantive difference between the present situation and the one where the government didn't make the error is that maybe Garcia's deportation to El Salvador would have been briefly delayed. Somehow I don't think that would satisfy critics. Neither does this error, which was rather peculiar to Garcia's cirumstances, set any kind of dangerous precedent that applies to other people, and certainly not citizens.

The only real argument here is that it the US is essentially outsourcing its prison sentence to El Salvador, and this means they can send people to a prison in another country without charging or convicting them of any crime. While this probably does not violate any law, it is very much against the spirit of the justice system and due process. The Trump administration can wash its hands of responsibility and say that they're just sending these people to El Salvador, and it's all on El Salvador to decide what to do with them from there. However, we all know the actual arrangement; we know they are for all practical purposes being sent to prison by ICE.

All that said, I don't really care, Marge. The treasonous failure to secure the border for almost my entire adult life, the literal conspiracy to import as many people as possible, resulting in millions of illegals and quasi-legals fundamentally warping and perverting the economy and culture of the country, is a far greater wrong. Unfortunately, the scale of this problem is so huge that only swift and aggressive action can possibly address it, and so there will likely be many more edge cases, errors, and happy little accidents. Personally, I'm okay with that. It's priced in. For this, I blame the people who created the problem in the first place, not the people who are now trying to fix it.

the ONLY substantive difference between the present situation and the one where the government didn't make the error is that maybe Garcia's deportation to El Salvador would have been briefly delayed.

Sure. And the only difference between executing Tim McVeigh in 1997 after his conviction instead of 1995 after his arrest was a delay. It's not like there was any chance of him being acquitted.

The withholding order was based on threats that no longer exist.

This claim is probably true, but it doesn't matter because that argument was never actually brought up.

The only real argument here is

That is not the only real argument.

Unfortunately, the scale of this problem is so huge that only swift and aggressive action can possibly address it

I think you are going to quickly find that there are between 0-2 votes on the Supreme Court for that, and that the only way to actually tackle the problem is to have a competent and diligent program of enforcement. One that I have consistently been in favor of (which is a nice thing about posting histories) for years before this administration decided to do it in a spectacular incompetent fashion.

What folks like you fail to comprehend is that trying to achieve a goal incompetently is not directionally correct -- by negative association is makes the goal even further away. You are just delaying (if not destroying) any ability to actually reckon with the scale of illegal and temporary immigrants.

You mean removing people to a country for which they had a legally binding order withholding removal.

That's not a "step in the paperwork" kind of mistake.

Yeah, it is. There's a process for removing that order based on obviously changed relevant facts. AIUI, it doesn't even require a judge. The basis for his withholding order was no longer valid. Ergo, it's a step in the paperwork.

I mean, the IRS can look at my tax paperwork and begin enforcement proceedings against me. That doesn't require a judge either (until I take them to tax court).

That doesn't imply that they can just freeze my bank accounts while skipping that step. The step is important, even if it wouldn't change the outcome in this specific case.

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